Tag: Measure L

The Yes campaign has been using an email from an Environmental Planner at the Bay Area Air Quality Management District (BAAQMD), Alison Kirk, sent Tuesday May 29 at 4 pm, as a purported vindication of air quality for the public areas at Deer Hill that would be purchased under Measure L by the City at a cost of $3M plus 50% of cost overruns and a cancellation of developer fees. There is even a Nextdoor post from a supporter of Yes claiming “According to BAAQM [sic], Deer Hill Site is Safe for Children”, citing an EBT article referring to that email and the email itself, neither of which said the site is “safe”.

So Susan Candell and I followed up with that planner, and her supervisor, David Vintze, Manager, Planning and Climate Protection at BAAQMD. Here’s what we found out:

ALTERED PROJECT DESCRIPTION. BAAQMD’s May 2016 Planning Healthy Places manual has a map with purple zones along freeways and major traffic corridors that are marked as areas of elevated air pollution and for application of “Best Practices to Reduce Exposure to Local Air Pollution”. This includes: “plan sensitive land uses farther from localized air pollution sources…one of the most effective health protective strategies that can be implemented to protect children and other vulnerable populations from the harmful effects of air pollution.”

It has been pointed out that part of the public areas on the site plans in the Homes EIR and for Ordinance 641 are in that purple zone along Pleasant Hill Road (PHR). The developer consultant’s report dated April 2018 included that EIR plan, and drew a dashed line starting at the trail about 50 feet in from PHR encompassing most of that public area, referring to it the “Project Description” on p.3 and Fig. 1. That description overlaps with the BAAQMD’s purple zone.

However, later in May, after that April 2018 report was criticized, the developer’s consultant sent a DIFFERENT diagram to BAAQMD, editing out all public areas in the purple zone and presenting two boxes purportedly 225 feet from PHR as the “Project” (we also believe the distances are exaggerated). The public areas between PHR and the boxes were NOT shown or referenced. Ms. Kirk did not notice the deletion, and was therefore induced to state in her email that “the Project is ADJACENT to areas recommended for ‘Best Practices’ and ‘Further Study’” (emphasis in original).

Anyone looking at the public areas on the actual site plan in the EIR can compare and see the deletion. Now that Ms. Kirk and Mr. Vintze are aware of the deletion, BAAQMD has changed its position to “Yes” the “public areas depicted on the EIR project description…include areas recommended for ‘Best Practices’ in BAAQMD’s Planning Healthy Places and is in the purple zone on the PHP online maps”. That corrects the second half of the 5/29 email the developer obtained by not showing the public areas within the purple zone to Ms. Kirk.

There have been a lot of claims regarding Measure L, and some of the debates can get fairly complicated, especially when people start getting into matters of law. Here then is a quick guide, written (mostly) in plain English, with some of the facts that you need to know.

Some voters are confused by comments that if Measure L is rejected the developer might resubmit the original 315 apartments application that was suspended on 1/13/14. Instead of being distracted by this vague threat, voters should evaluate the Homes project on the merits of its traffic impacts, view impacts, and $3M of city money for a children’s play area and sport field on a major traffic corridor with air quality issues. The city has the legal authority to deny that project as detailed below.

The apts application was never approved. It was suspended in 2014 when the city certified the apts EIR with 13 significant unavoidable environmental impacts including 5 public health and safety impacts. The California housing accountability act, government code (“govt. Code”) 65589.5(d)(2) authorizes denial of apartments for adverse impacts on public health and safety.

The controlling general plan designation for the property became low density single family residential 2 units/acre (“LDSFR”) on 8/10/15, which does not allow apts. If resubmitted, the apts application would require a general plan amendment, which is a legislative act under govt. Code 65301.5 and subject to another voter referendum.

The developer argues there is administrative professional office zoning (APO) on the property from before 2015, but this is temporary and unenforceable. Per govt. Code 65860(c). The zoning is subordinate to the LDSFR general plan designation. The city council is already making plans to amend the APO zoning to low density residential if measure L is rejected by the voters.

A 2014 tolling agreement and processing agreement would not allow the city to disregard state law and the strict deadlines of the permit streamlining act which expired on the apts application in 2014.

Approval of Measure L will establish precedents on traffic impacts and hillside development that will adversely affect the city’s residents on future land use applications.

The city breached a mandatory duty to voters and improperly interfered with the referendum process.

Future outcomes in litigation cannot be predicted with absolute certainty. All that can be done is to make an evaluation of legal issues based on the strengths and weaknesses of the various arguments. In the case of Measure L, the arguments being put forward about apartments are weak. Voters should decide how to cast their vote based on the merits of the Homes project and not be misled.

In April supporters of Yes on L published a new HRA (Health Risk Assessment) from the same company that did the original one. An independent analysis of that HRA has uncovered major flaws with the methodology, enough to make it invalid.

According to this analysis, the methodology is inaccurate in methodology and in omissions and the health risk to children understated by a large factor, large enough to change the outcome of the report. There were several problems including:

Air Quality used was average of an entire day, though children would be using the field from 3-6pm, when traffic is much heavier.

Children were assumed to be standing in place, when they would in fact be exercising vigorously.

Ultrafine Particulate Matter was completely ignored.

Correcting the errors results in a determination that the field is unsuitable for the intended activities.

Recently, the City Attorney provided misleading guidance regarding the previously proposed Terraces project and if it could be resurrected if Measure L is defeated. Our attorney responded to that letter (previously discussed here).

On 5/14 she provided an updated summary, but there were no substantial differences and all of the errors in reasoning for the previous summary still remained.

Supporters of the “Homes at Deer Hill” proposal attempt to scare voters into believing that a “No” vote on Proposition L will result in the Terraces project with 315 apartments on the sensitive parcel between Deer Hill Road, Pleasant Hill Road and Highway 24. The truth, however, is that the apartment project has never been approved; and it would face the same extreme obstacles as before if the developer elects to resurrect it — including but not limited to the People’s referendum power.

There have been many questions raised regarding the housing bills passed in 2017 and 2018. Here then is an attempt to answer those questions.

SB 35 provides for various housing reports, and expedited approval of multifamily projects if a locality that does not meet assigned housing goals fails to submit “an annual housing element report …for at least two consecutive years”. However, even that only applies to projects for which “at least 75 percent of the perimeter of the site adjoins parcels that are developed with urban uses”. Deer Hill meets 0 percent of this requirement. Deer Hill is not part of Lafayette’s multifamily housing element map. Also per city website, “Lafayette’s Housing Element was certified by the State of California on March 26, 2015” for 2014-2022. In other words, Lafayette is in compliance and Deer Hill wouldn’t fall within SB 35 even if the city wasn’t.

The other new laws cited mainly fall within the 2018 version of the Housing Accountability Act, Government Code 65589.5, addressed below.

The Deer Hill 44 Homes project has the Level of Service F traffic impacts, road closure, and steep roundabout that has been mentioned, no way to sugarcoat that. As for the air quality issue for the children’s play area 160 feet from PHR (36,000 cars/day), and sports field 200 feet from PHR and 50 feet from Deer Hill Road (12,200 cars/day), the air quality risk to children is undeniable. The developer’s consultant has put out a report disregarding and failing to report on fine to ultrafine Particulate matter smaller than 2.5 microns, the type that penetrates into lung tissue, the bloodstream, and the body’s cells and blood/brain barrier according to James Leach, recipient of Lafayette’s Award of Environmental Excellence, and the Bay Area Air Quality Management District’s 2016 “Planning Healthy Places” [very small particulate matter “less than 2.5 microns…can travel deep into the lungs and and enter the bloodstream”; “children and infants are among the most susceptible…”; recommends “restricting sensitive land uses near heavily trafficked freeways/roadways”]. The Legislature restricts (Ed.Code 17213) public school district from placing new schoolsites within 500 feet of busy traffic corridors; the Ed. Code definition of schoolsite includes “playgrounds, athletic fields”.

For any reader trying to make sense of the developer’s claims on purported air safety- the key is to look for reference to particulate matter smaller than 2.5 microns, the point below which the PM enters the bloodstream, cells, and brain per Mr. Leach, the BAAQMD, etc. You won’t find it disclosed in the developer’s report, who completely disregards this health risk. That’s how they try to claim the air is safe for active children playing near tens of thousands of cars. Similar near roadway sites monitored by BAAQMD for PM 2.5 test into the “Unhealthy for Sensitive Groups” monthly category, and they aren’t monitoring yet for below PM 2.5 which may be worse.

So what chance of 315 apartments coming back? The developer “suspended” that application on 1/13/14 in the face of major opposition and the City Council’s certification of the Apts EIR with 13 significant unavoidable environmental impacts. Included were 2 unavoidable air quality impacts and 3 unavoidable traffic impacts, literally “jammed conditions” with “unacceptable” delays to emergency responders. Even with the 2017 amendments, the Housing Accountability Act, Govt. Code 65589.5(d)(2), authorizes denial of multifamily for significant unavoidable (SU) public health and safety impacts. These SU impacts were certified by the City. Other claims by the developer and city attorney (who recommended breaching the city’s mandatory duty to voters in 2015, per the Court of Appeal) are also incorrect. The apts application lapsed in 2014 under controlling state law, and if “resubmitted” is subject to all new city ordinances and the Low Density Single Family Residential general plan designation adopted in 2015, under Govt. Code 65950(a)(1), 65957, 65943. Apartments would require a general plan amendment and be subject to another referendum (65301.5).

If you don’t like the 1224 vehicles/day and spending $3M of city money for a children’s play area and sports field by a busy traffic corridor, you should feel free to vote the way you want. There are better field locations and after June 5 the city could approve a more common sense project with less traffic impact to gridlocked PHR.